Plaintiff
Abraham Kasparian, Jr. filed suit in Barnstable County
Superior Court, Massachusetts, against Defendants Duffy
Health Center and three of its federal employees, Wesley
Klein, D.O., Michael Fusco, R.N., and Duncan Macallister,
following an alleged refusal to provide him with medical
treatment at the Duffy Health Center on February 26, 2016.
Kasparian's complaint alleges breach of contract (Count
I), intentional infliction of emotional distress
(“IIED”) (Count II), and “violation of
right to medical treatment and care” causing extreme
pain (Count III). [ECF No. 1-3]. On July 27, 2016, the
federal employees removed the case to this court because they
are covered by the Federal Tort Claims Act by virtue of their
employment with Duffy Health Center.[1] [ECF No. 1]. On August 8,
2016, Defendants moved to substitute the United States as the
proper party as to Counts II and III [ECF No. 5], which was
allowed by this Court on August 31, 2016 [ECF No. 8].
Although the federal employees were ultimately dismissed from
Counts II and III in favor of the United States, they remain
defendants against Count I. On September 2, 2016, the federal
employees and the United States moved to dismiss the
complaint in its entirety. [ECF No. 10]. For the reasons
discussed below, the Court grants the motion and dismisses
the complaint.

I.
BACKGROUND

In the
original complaint filed in state court [ECF No. 1-3 at
10-16], Kasparian sets forth the following factual
allegations. On or about January 18, 2016, Kasparian was a
patient of Duffy Health Center. Id. ¶ 6. He
made an appointment on February 26, 2016 for a complete
behavioral review, which was required by the terms of his
probation, and to review a number of medical issues given his
age and chronic health issues. Id. ¶¶ 7-9.
On February 25, 2016, Kasparian received a phone call from a
staff member at the Duffy Health Center informing him that
his appointment was cancelled and that if he came to the
Duffy Health Center he would be trespassing. Id.
¶ 10.

Kasparian
then alleges that the Chief Probation Officer, Brian Webber,
informed him that the appointment had not been cancelled
after Webber called Duffy Health Center. Id. ¶
11-12. On February 26, 2016, Kasparian arrived at the Duffy
Health Center for the appointment he believed was scheduled,
and was met by Defendants Klein and Fusco, who reiterated
that his medical appointment had been cancelled and that if
he did not leave he would be arrested as a trespasser.
Id. ¶¶ 13-14. Klein and Fusco then
presented Kasparian with a document entitled “Trespass
Statute Notice, ” and informed him that the Barnstable
Police had been called. Id. ¶ 14. Kasparian,
confused, told them about Webber's phone call confirming
his appointment, but Defendants Klein and Fusco said that
this phone call had not been made. Id. ¶ 15.
Kasparian then phoned Webber, who informed him that he should
leave. Id. ¶ 18.

Before
leaving, Kasparian asked Klein for assistance with refilling
his medication for his mental health needs, and Klein said he
could not do so. Id. ¶ 19. Kasparian alleges
that he “suffered humiliation and great emotional
distress from the wrongful actions of the Defendants.”
Id. ¶ 21. After leaving the Duffy Health
Center, Kasparian tried to refill his mental health
medication at Cape Cod Hospital's Emergency Center, where
he told nurse Ellen Carty that the Duffy Health Center would
not help him with his supply. Id. ¶ 22. Carty
then phoned the Duffy Health Center. Id. ¶ 23.
Kasparian alleges that, based on what he could overhear
during that call, Klein tried to get Carty to turn Kasparian
away as well. Id. Kasparian heard Carty and Klein
discussing “sexual assault.” Id. ¶
24. Kasparian told Carty that he had been released from
prison on January 6, 2016, but that he had never been
involved in such an incident. Id. Kasparian did
admit to Carty that he had assaulted his former wife in 2002.
Id. Again, Kasparian alleges that he suffered
humiliation and emotional distress when giving this
explanation to Carty. Id. Upon discharging him from
the hospital, Carty reiterated in her instructions that
Kasparian was not welcome at the Duffy Health Center, that he
would need to find a primary care provider, and that he
should not wait until the supply of his medications was low.
Id. ¶ 27. Kasparian claims that these papers
are now a part of his medical records, which he alleges
interferes with his right to have medical treatment, causes
him to suffer humiliation and emotional distress, and caused
him to suffer physical pain because he was not able to obtain
a diagnosis at the Duffy Health Center for an ailment
eventually diagnosed as “acute colitis-presumed
infectious.” Id. ¶¶ 27-29.

On
March 15, 2016, Kasparian met with his probation officer, who
informed him that an employee at Duffy was afraid of him.
Id. ¶ 30. Kasparian claims that this caused him
more distress. Id.

The
United States, having been substituted as the proper party
for Counts II and III, and the other defendants as federal
employees of Duffy Health Center, now move to dismiss the
complaint in its entirety pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). [ECF No. 11]. In his
opposition to the motion [ECF No. 15], Kasparian argues that
Defendants' actions violated Massachusetts state law, and
he requests that his complaint be transferred back to
Barnstable County Superior Court. He also requests that this
Court order sanctions and enter a default judgment due to the
defendants' failure to appear at depositions that he
scheduled.

II.
LEGAL STANDARD

In
evaluating a motion to dismiss for failure to state a claim
pursuant to Federal Rule of Civil Procedure Rule 12(b)(6),
the Court must accept as true all well-pleaded facts, analyze
those facts in the light most hospitable to the
plaintiff's theory, and draw all reasonable inferences
from those facts in favor of the plaintiff. U.S. ex rel.
Hutcheson v. Blackstone Med. Inc., 647 F.3d 377, 383
(1st Cir. 2011). To avoid dismissal, a complaint must set
forth “more than labels and conclusions, ”
Bell Atl. Co. v. Twombly, 550 U.S. 544, 555 (2007),
and must include “factual allegations, either direct or
inferential, respecting each material element necessary to
sustain recovery under some actionable legal theory, ”
Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.
2008) (internal quotations and citation omitted). The facts
alleged, when taken together, must be sufficient to
“state a claim to relief that is plausible on its
face.” A.G. ex rel. Maddox v. Elsevier, Inc.,
732 F.3d 77, 80 (1st Cir. 2013) (quoting Twombly,
550 U.S. at 570). The plausibility standard invites a
two-step analysis. Id. “At the first step, the
court ‘must separate the complaint's factual
allegations (which must be accepted as true) from its
conclusory legal allegations (which need not be
credited).'” Id. (quoting Morales-Cruz
v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)).
“At the second step, the court must determine whether
the remaining factual content allows a reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. (internal quotations and
citation omitted). “[T]he combined allegations, taken
as true, must state a plausible, not a merely conceivable,
case for relief.” Sepulveda-Villarini v. Dep't
of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010).

When
evaluating a motion to dismiss for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1), “[t]he existence of subject-matter
jurisdiction ‘is never presumed'” because
federal courts are courts of limited jurisdiction. Fafel
v. Dipaola, 399 F.3d 403, 410 (1st Cir. 2005) (quoting
Viqueria v. First Bank, 140 F.3d 12, 16 (1st Cir.
1998)). The Court may look beyond the pleadings in order to
determine if it has jurisdiction over the matter.
Gonzalez v. United States, 284 F.3d 281, 288 (1st
Cir. 2002). In making this determination, the Court may
“consider whatever evidence has been submitted, such as
the depositions and exhibits submitted.” Aversa v.
United States, 99 F.3d 1200, 1210 (1st Cir. 1996).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;a.
Claims Against the United ...

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